The Minnesota case of the week is the published decision of State v. Mohomoud, _N.W.2d _ (Minn. App. decided September 14, 2010) which serves as a cautionary tale that any individual arrested for a DWI should hire an attorney who knows what he is doing!!
In Mohomoud, the Defendant was charged with felony DWI. His attorney stipulated to his prior DWI convictions to prevent the jury from learning of his prior offenses. So far, so good, as the Minnesota Supreme Court in State v. Berkelman, 355 N.W.2d 394 (Minn. 1984) recognized that the introduction of prior offenses is prejudicial to a defendant and, therefore, held that a defendant has the right to stipulate to the prior convictions to keep the jury from being influenced by the defendant's prior conduct.
At the trial, the prosecutor played a DVD recording made of the defendant's conversation with an attorney on the night of the defendant's arrest. The recording contained references of Mohomoud's prior convictions. Specifically, Mohomoud can be heard stating to the attorney, "I just got out of prison"; and "I was in prison for my fourth DWI". Mohomoud then discussed the dates of his prior convictions, fines and his prison term.
Before offering the DVD in evidence, the prosecutor discussed its content with defense counsel and the court. The court asked defense counsel for his position on the prosecutor's proposal and counsel stated that he agreed with it, stating:
"Yes, Your Honor, I have heard and he discussed this with me. The very first reference, as we agreed, we'd cue up past that first reference. Due to the nature of the software and its inability to edit it—although we'd prefer to have those removed, we also understand it's more work than it's worth and I understand that it's a minor reference. So although we'd prefer to have it out, we don't object to those other statements at this point."
When the prosecutor offered the DVD as an exhibit, defense counsel then stated that he had "no objection" to the evidence.
On appeal, Mohomoud's appellate counsel argued that the admission of the recording of his conversations with his attorney was "plain error" because it violated longstanding caselaw requiring suppression of a DWI arrestee's conversations with an attorney pursuant to the implied consent advisory, citing State v. Clark, 375 N.W.2d 59 (Minn.App. 1985).
State v. Clark is a Court of Appeals case which follows State v. Berkelman in holding that the defendant has the right to stipulate to his prior offenses to prevent their consideration by the jury.
But Sadly Now, There Can Be But One Outcome:
In the present case however, the Court of Appeals held that, "The plain-error standard applies when a party failed to object to the allegedly erroneous admission of evidence. It does not apply when a party intentionally and expressly gives up a known right. In the former instance, it is said that a forfeiture of the error has occurred; in the latter, the result is a waiver of error."
A forfeiture of the error is subject to due process review under the plain error standard. A waiver of the error is not. Or, as stated by the Court of Appeals, "The logic of the distinction is compelling. If a party knows of a right and intentionally relinquishes that right, it cannot be said that the trial court erred regarding the subject matter of that right or that there is any error to review on appeal. Defense counsel here clearly waived Mohomoud's right to have the evidence of his conversation with a lawyer excluded by acknowledging that he heard the recording, discussed it with the prosecutor ...and when the prosecutor offered the recording, defense counsel said he had no objection. Mohomoud's waiver extinguished any error that might have been predicated on the admission in evidence of the portions of the recording at issue."
Trial counsel's performance was deficient for a number of reasons:
First, he snatched defeat from the jaws of victory by obtaining the exclusion of the prior offenses but then agreed to their admission as contained in the DVD recording. What was he thinking?
Second, although it is not discussed in the present case, any conversation between a DWI suspect and an attorney is not admissible pursuant to Commissioner of Public Safety v. Campbell, 494 N.W.2d 268 (Minn.App. 1992).
In Campbell, the Minnesota Court of Appeals held that the police may be present during a DWI arrestees telephone conversation with an attorney as the police have a right to do an "observation period" of the suspect prior to the suspect's submission to alcohol testing. But the court held in Campbell that the content of the conversation with the attorney is not admissible.
So why trial counsel for Mohomoud did not object to the entire DVD is beyond me and is completely inexcusable.
It has long been held that people may not be punished for exercising their statutory and constitutional rights. For example, if a suspect invokes his right to remain silent or if he invokes his right to counsel, the exercise of those rights may not be presented to the jury. (Why? Because it is prejudicial: If juries are allowed to consider the matter instead of reviewing the evidence, they may decide that if the suspect had nothing to hide, he would not refuse to speak to the police or seek the advice of counsel.)
Moral of the Story: Don't let in the back door what you kept out of the front!
F. T. Sessoms, Minnesota DWI Lawyer
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer
F. T. Sessoms, Minnesota DWI Lawyer